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KERALA HIGH COURT
Alexander Thomas, J.
P.J. Joseph —Petitioner
versus
State of Kerala and Anr. —Respondents
OP(Crl.). No.6 of 2016 (Q)
Decided on 6.7.2017
Held: Thus going by the overall scheme in the provisions contained in the Cr.P.C more particularly in Chapter XXIA and in the light of the backdrop of the constitutional guarantees, the provisions contained in Sec.265G would even override any other provisions of the Code, inconsistent with the former. Therefore, the complainant cannot contend that the accused should necessarily prove miscarriage of justice or should establish factually that he has suffered failure of justice or miscarriage of justice over the judgment impugned of the trial court in the plea bargaining process so long as the accused can plead and establish that there has been flagrant violations of the mandatory provisions contained in Chapter XXIA of the Cr.P.C. In the light of these aspects, this Court has no hesitation to hold that the contentions raised by the learned counsel for R-2 challenging the correctness of the view taken by the learned single Judge of this Court in Joseph v. State of Kerala reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in 2016 (1) KLT 117 are bereft of any merit and the said arguments of the complainant are overruled. That apart, this Court would fully concur with the views, reasonings and conclusions arrived at by the learned Single Judge [B.Kemal Pasha (J)] in the aforecited judgments.
In view of the said position, this Court would opine that it may not be appropriate for the trial court to take recourse to the plea bargaining process under Chapter XXIA of the Cr.P.C in relation to the complaints for offence punishable under Sec.138 of the N.I.Act. If the parties are willing, the trial court should endeavour to refer those disputants to the nearest mediation centre or Adalat for facilitating resolution of disputes through such alternate dispute resolution mechanisms. If the mediation process undertaken by the parties is successful, then the complainant could be permitted to withdraw the complaint in terms of the provisions contained in Sec.257 of the Cr.P.C or both the parties could be permitted to file a joint compromise petition for compounding of the offence in terms of Sec.147 of the N.I.Act r/w Sec.320 of the Cr.P.C. If Adalat process is successful, then award could be passed in terms of the provisions contained in Legal Service Authorities Act. In such cases, the Apex Court has held in K.N.Govindan Kutty Menon v. C.D.Shaji reported in (2012) 2 SCC 51 that award of the Adalat could be treated as executable decree, etc. Since the provisions contained in Chapter XXIA of the Cr.P.C have been made effective from 5.7.2006, it appears that most of the trial courts may not be actually in grips with the provisions contained in the said Chapter, which is to be appreciated and applied in the backdrop of the aforementioned constitutional guaranteed right.
The aforementioned provisions in Chapter XXIA of the Cr.P.C are the procedures engrafted by the Parliament, which are to be observed before the accused is found guilty and sentenced in such plea bargaining process. If such mandatory procedures are violated, then it will amount to denial of the procedural safeguards, which are inbuilt as due process in Article 21 of the Constitution of India and the corollary of such failure to observe those procedures would amount to deprivation of the personal rights of an accused on account of his conviction. Article 21 of the Constitution of India has guaranteed that no person shall be deprived of his personal liberty except according to the procedure established by law and case laws of the Supreme Court are in legion as in Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248, wherein it has been held that the right to life and personal liberty cannot be denied to anyone except, in accordance with the procedure established by law, which is just, fair and reasonable. So needless to say, any violation of such mandatory provisions in Chapter XXIA of the Cr.P.C would amount to denial of constitutional right to life and personal liberty of an accused.
The impugned decision making process of the trial court is also vitiated on account of various other factors which have already been referred to in detail in the preceding paragraphs of this judgment. Sri.Sreelal N.Warrier, learned counsel for R-2, submits that believing on the bonafides of the accused the complainant had even withdrawn the civil suit filed by him as O.S.No.267/2013 against the accused in respect of recovery of money covered by the dishonoured cheque in question and that the complainant is in pitiable situation and that the accused has disowned the plea bargaining in the criminal proceedings and the accused could also get the advantage in the complainant’s withdrawal of the civil suit filed by him. Sri.Shaju Purushothaman, leaned counsel appearing for the petitioner, on the basis of instructions of his party would fairly submit that in case the complainant files a proper application before the civil court for recall of the order dismissing the suit as withdrawn and for restoration of the suit to be tried on merits, then the accused, who is the defendant therein, will not oppose the said plea and even the plea for condonation of delay in filing such application before the civil court and that the accused does not want to take any undue advantage over the complainant and that the complainant may produce a copy of this judgment before the civil court to show that the accused has made such an undertaking in that regard. The said submissions made by Sri.Shaju Purushothaman, learned counsel appearing on behalf on the accused, are recorded and it is for the complainant to take appropriate measures before the civil court for recall of the order dismissing the civil suit as withdrawn and for its restoration, and to try the suit on merits, etc., and the undertaking on the above said aspects made by the accused that he will not oppose such pleas that may be made before the civil court may be brought to the notice of the civil court by producing a copy of this judgment.
In the light of these aspects, it is held that the impugned Ext.P-3 order dated 12.11.2014 passed by the Judicial First Class Magistrate Court, Erattupettah, in C.C.No.101/2013 convicting and sentencing the petitioner in the plea bargaining process, is declared as illegal and ultra vires and the same is set aside. Consequently, the complaint in C.C.No.101/2013 is restored to the trial court concerned and the trial court will proceed with the trial of the case from the stage where it had reached immediately prior to the commencement of the plea bargaining process and then complete the trial in accordance with law. Having regard to the fact that the complaint was instituted as early as in the year February, 2013, it is ordered that the trial court will take all expeditious steps to ensure that the trial is completed within a period of 3-4 months from the date of production of a certified copy of this judgment. It is further ordered that the trial court shall not in any manner take into account the aspects relating to the plea bargaining process and the final verdict is to be rendered, untrammelled in any manner by the plea bargaining process which has been now set aside by this Court. (Paras 22 to 26)
Result: Petition disposed of.
Certainly. Based on the provided legal document, the key points are as follows:
The procedure for plea bargaining under Chapter XXIA of the Criminal Procedure Code (Cr.P.C.) is mandatory and must be strictly followed. Any deviation or failure to adhere to these procedures can vitiate the process and violate the rights of the accused (!) (!) (!) .
The provisions in Chapter XXIA, especially sections related to in-camera examination of the accused and the preparation of statutory reports, are designed to ensure that the plea is made voluntarily, knowingly, and intelligently. Violations of these provisions can amount to a failure of justice and can be grounds for setting aside the plea bargain (!) (!) .
The rights guaranteed under Article 21 of the Constitution, including the right to personal liberty and due process, are fundamental and cannot be compromised. Procedural safeguards mandated in the chapter are essential to protect these rights during plea bargaining (!) (!) .
The provisions of Chapter XXIA override any inconsistent provisions in other parts of the Cr.P.C., emphasizing their mandatory nature. Non-compliance with these provisions can lead to the plea bargaining being declared illegal and ultra vires (!) (!) .
The process of plea bargaining should involve proper and independent in-camera proceedings, and the absence of such proceedings can invalidate the process. The trial court must ensure that the accused's consent is voluntary and well-informed (!) (!) .
Any violation or procedural irregularity in the plea bargaining process can cause prejudice to the accused and may result in a failure of justice, warranting the setting aside of the order and restoration of the original complaint for trial (!) (!) .
The finality of judgments under plea bargaining is protected by specific statutory provisions, but these provisions also require that the process be free of procedural errors and violations of constitutional rights. The judgment must be based on a proper record demonstrating voluntariness (!) (!) .
The court emphasizes the importance of proper legal procedures, including the necessity of informing the accused of their rights, conducting in-camera examinations, and recording the proceedings accurately to ensure fairness and uphold constitutional guarantees (!) (!) .
The law mandates that any plea of guilt must be made voluntarily and with full understanding of the consequences. If the process is not properly conducted, the plea may be invalid, and the conviction can be challenged (!) (!) .
The court has held that violations of the procedural requirements in plea bargaining, especially those related to the rights of the accused under constitutional guarantees, can amount to a deprivation of personal liberty and thus are grounds for setting aside such orders (!) .
In cases where plea bargaining procedures are not properly followed, or where the accused's rights are compromised, the appropriate course is to set aside the plea bargain, restore the original complaint, and proceed with the trial without influence from the invalid plea process (!) (!) .
The overall scheme of the law underscores the importance of transparency, voluntariness, and adherence to procedural safeguards in plea bargaining, ensuring that constitutional rights are protected and justice is served (!) (!) .
The judgment clarifies that the provisions in Chapter XXIA are intended to protect the fundamental rights of the accused, and any procedural lapses that violate these rights are to be regarded as illegal and invalid (!) .
The court directs that cases involving plea bargaining should be handled with utmost care, ensuring strict compliance with the procedural mandates, and emphasizes that any breach can lead to the process being declared null and void (!) .
The order concludes with the setting aside of the plea bargaining order, restoration of the original complaint, and an order for expeditious trial, emphasizing that the final verdict must be uninfluenced by the invalid plea process (!) .
These points collectively highlight the importance of strict procedural compliance, safeguarding constitutional rights, and ensuring fairness in the plea bargaining process under the law.
Alexander Thomas, J.—The petitioner herein is the accused for offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.101/2013 on the file of the Judicial First Class Magistrate Court, Erattupetta, instituted on the basis of a complaint filed by the 2nd respondent herein. The petitioner availed the facility of plea bargaining as envisaged in Sec.265B of Chapter XXIA of the Cr.P.C. Ext.P-2(1) is stated to be the statement of mutually satisfactory disposition said to have been arrived at between the petitioner-accused and R-2 complainant under Sec.265C of the Cr.P.C, wherein the accused has stated that he is ready to plead guilty of the above offence and pay the fine ordered by the court and further that the complainant has no objection in accepting the plea of the accused if an amount of Rs.4.5 lakhs (Rupees Four Lakhs and Fifty Thousand only) is paid as compensation to the complainant under Sec.357 (1)(b) of the Cr.P.C. The complainant had no objection in granting a period of 5 months to the accused for paying the fine/compensation amount. Ext.P-2(4) is the application for plea bargaining filed by the petitioner under Sec.265A of the Cr.P.C. and Ext.P-2(3) is the affidavit filed along with the said application. Ext.P-2(2) is stated to be the report of the mutually satisfactory disposition. Ext.P-3 is the order passed by the learned Magistrate under Sec.265E regarding the disposal of the matter, whereby the Magistrate has accepted the mutually satisfactory disposition in his plea bargaining and had ordered that the petitioner is found guilty of the offence under Sec.138 of the N.I.Act and that he is sentenced to pay compensation of Rs.4.5 lakhs to the complainant under Sec.357(3) of the Cr.P.C., and in default thereof he was sentenced to undergo simple imprisonment for 6 months, etc.
2. It is the contention of the petitioner that the impugned Ext.P-3 order/judgment passed by the trial court accepting the plea bargaining is in flagrant violation of the mandatory provisions which regulate the procedure for plea bargaining contained in Chapter XXI A of the Cr.P.C. It is contended that the slightest deviation thereof would result in the negation of fundamental rights of the accused and none of the vital procedure prescribed to be followed before accepting the plea bargaining has been complied with, except for the minimal formalities. Further, most importantly, the trial court has not examined the petitioner-accused in the absence of the complainant under in camera as per the mandatory provisions contained in sub-sec.(4) of Sec.265B of the Cr.P.C. It is also contended by the petitioner that the statutory report of mutually satisfactory disposition of the case has not been prepared by the trial court in accordance with the mandatory provisions contained in Sec.265D of the Cr.P.C., etc. The petitioner essentially places reliance on the judgments dated 8.10.2015 of this Court in Joseph v. State of Kerala [W.P.(C).No.13803/2014] reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. [O.P(Crl).No.41/2015] reported in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala [O.P(Crl).No.253/2014] reported in 2016 (1) KLT 117, wherein it has been held that the provisions contained in Chapter XXIA of the Cr.P.C are mandatory procedures contemplated thereunder and that in case of plea bargaining, the accused should be examined in camera in the absence of the complainant or defacto complainant and that where the trial court disposes of a matter accepting plea bargaining without examining the accused in camera in the absence of the complainant as mandated in Sec.265B(4) of the Cr.P.C, then it will be a grave illegality which would result in quashment of the order/judgment passed by the trial court accepting the plea bargaining, etc.
3. The above O.P filed under Article 227 of the Constitution of India was admitted by this Court on 11.1.2016 and this Court had passed interim order dated 11.1.2016 ordering that the
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